Rule2023-13668
Determination of Rates and Terms for Public Broadcasting (PB IV)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 28, 2023
Effective
June 28, 2023
Issuing agencies
Library of CongressCopyright Royalty Board
Abstract
The Copyright Royalty Judges publish final regulations that set rates and terms for use of certain works in connection with noncommercial broadcasting for the period from January 1, 2023, through December 31, 2027.
Full Text
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<title>Federal Register, Volume 88 Issue 123 (Wednesday, June 28, 2023)</title>
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[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Rules and Regulations]
[Pages 41827-41833]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13668]
[[Page 41827]]
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 381
[Docket No. 21-CRB-0002-PBR (2023-2027)]
Determination of Rates and Terms for Public Broadcasting (PB IV)
AGENCY: Copyright Royalty Board (CRB), Library of Congress.
ACTION: Final rule.
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SUMMARY: The Copyright Royalty Judges publish final regulations that
set rates and terms for use of certain works in connection with
noncommercial broadcasting for the period from January 1, 2023, through
December 31, 2027.
DATES:
Effective date: June 28, 2023.
Applicability date: These rates and terms are applicable during the
period from January 1, 2023, through December 31, 2027.
ADDRESSES: For access to the docket to read background documents or the
comment received, go to eCRB, the Copyright Royalty Board's electronic
filing and case management system, at <a href="https://app.crb.gov/">https://app.crb.gov/</a> and search
for docket number 21-CRB-0002-PBR (2023-2027).
FOR FURTHER INFORMATION CONTACT: Anita Brown, CRB Program Specialist,
(202) 707-7658, <a href="/cdn-cgi/l/email-protection#385b4a5a7854575b165f574e"><span class="__cf_email__" data-cfemail="f2918090b29e9d91dc959d84">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
Section 118 of the Copyright Act, title 17 of the United States
Code, establishes a statutory license for the use of certain
copyrighted works in connection with noncommercial television and radio
broadcasting. Chapter 8 of the Copyright Act requires the Copyright
Royalty Judges (Judges) to conduct proceedings every five years to
determine the rates and terms for the section 118 license. 17 U.S.C.
801(b)(1), 804(b)(6). In accordance with section 804(b)(6), the Judges
commenced the proceeding to set rates and terms for the period 2023-
2027 on January 5, 2021. 86 FR 325.
In the Federal Register notice, the Judges requested that
interested parties submit petitions to participate. Id. Petitions to
Participate (PTPs) were received from: The American Society of Authors,
Composers and Publishers (ASCAP); SESAC Performing Rights, LLC;
Broadcast Music, Inc. (BMI); Educational Media Foundation (EMF);
Corporation for Public Broadcasting (CPB), National Public Radio (NPR),
and the Public Broadcasting Service (PBS) (jointly, the Public
Broadcasting Entities (PBE)); National Religious Broadcasters
Noncommercial Music License Committee (NRBNMLC); the Church Music
Publishers' Association (CMPA); The Harry Fox Agency (HFA); Global
Music Rights, LLC (GMR); and David Powell.
The Judges set the timetable for the three-month negotiation
period, see 17 U.S.C. 803(b)(3), and directed the participants to
submit written direct statements no later than September 10, 2021.
Notice of Participants, Commencement of Voluntary Negotiation Period,
and Case Scheduling Order (Feb. 9, 2021). The Judges amended the case
schedule four times to accommodate ongoing negotiations. See, e.g.,
Order Granting Joint Motion to Postpone Submission of Written Direct
Statements (Dec. 1, 2021). In July 2021, September 2021, November 2021,
and December 2022 participants filed notices of settlement and proposed
rates and terms for adoption.\1\
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\1\ The Judges received no notice of settlement or proposed
rates and terms from participant David Powell.
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There are two ways copyright owners and public broadcasting
entities \2\ may negotiate rates and terms under the section 118
statutory license. First, copyright owners may negotiate rates and
terms with specific public broadcasting entities for the use of all of
the copyright owners' works covered by the license. Section 118(b)(2)
provides that such license agreements ``shall be given effect in lieu
of any determination by the . . . Copyright Royalty Judges,'' provided
that copies of the agreement are submitted to the Judges ``within 30
days of execution.'' 17 U.S.C. 118(b)(2). The Judges received five
agreements in this category for which no further action was
required.\3\
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\2\ A ``public broadcasting entity'' is defined as a
``noncommercial educational broadcast station as defined in section
397 of title 47 and any nonprofit institution or organization
engaged in the activities described in paragraph (2) of subsection
(c)'' of section 118. 17 U.S.C. 118(f).
\3\ The Judges received agreements with PBE from BMI, HFA,
SESAC, ASCAP, and GMR on October 29, 2021; November 2, 2021;
November 2, 2021; January 28, 2022; and December 29, 2022,
respectively.
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Second, copyright owners and public broadcasting entities may
negotiate rates and terms for categories of copyrighted works and uses
that would be binding on all owners and entities using the same license
and submit them to the Judges for approval. Section 801(b)(7)(A) of the
Copyright Act authorizes the Judges to adopt rates and terms negotiated
by ``some or all of the participants in a proceeding at any time during
the proceeding'' provided they are submitted to the Judges for
approval. This section states that the Judges shall: (1) provide an
opportunity to comment on the agreement to non-participants who would
be bound by the terms, rates, or other determination set by the
agreement; and (2) provide an opportunity to comment and to object to
participants in the proceeding who would be bound by the terms, rates,
or other determination set by the agreement. See section 801(b)(7)(A).
The Judges may decline to adopt the agreement as a basis for statutory
terms and rates for participants not party to the agreement if any
participant objects and the Judges conclude that the agreement does not
provide a reasonable basis for setting statutory terms or rates. Id.
The Judges received negotiated rates and terms from ASCAP (Jul. 2,
2021), BMI (May 17, 2021), GMR (Sept. 9, 2021), and SESAC (Sept. 3,
2021), and jointly from all four (Dec. 7, 2022) regarding rates for
compositions in their repertories by certain public broadcasters; \4\
and from NRBNMLC jointly with ASCAP (Sept. 9, 2021), BMI (Sept. 10,
2021), GMR (Sept. 9, 2021, and Dec. 7, 2022), SESAC (Sept. 10, 2021),
and HFA (June 21, 2021) regarding rates for compositions in their
repertories by certain other public broadcasters. The Judges received
joint proposals from PBE and HFA regarding the fees in Sec. 381.7
(Dec. 12, 2022); from CPB, NPR, and PBS regarding the provisions of
Sec. 381.4 (Dec. 30, 2022); and from CPB and PBS regarding the rates
in Sec. 381.8 (Jan. 5, 2023).
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\4\ The joint proposal aggregates the separate proposals and is
to be considered in place of them. See Dec. 7, 2022 Joint Proposal
at 1 n.1.
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The Judges published the aforementioned settlements in the Federal
Register for comment on January 26, 2023. 88 FR 4928. Members of the
public could comment on, and participants in this rate proceeding could
comment on and object to, any or all of the proposed regulations and a
proposed technical revision.\5\ Id.
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\5\ The Judges' January 26, 2023 Federal Register document
proposed technical revisions to Sec. Sec. 381.7(e) and 381.8(e)(1)
to require online filing of cue sheets or summaries in lieu of
submissions of electronic copies on compact disk or floppy diskette.
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Statutory Standard and Precedent
Pursuant to section 801(b)(7)(A) of the Copyright Act, the Judges
have the authority to adopt settlements between some or all of the
participants to a proceeding at any time during a proceeding. This
section states that the Judges shall: (1) provide an opportunity
[[Page 41828]]
to comment on the agreement to non-participants who would be bound by
the terms, rates, or other determination set by the agreement; and (2)
provide an opportunity to comment and to object to participants in the
proceeding who would be bound by the terms, rates, or other
determination set by the agreement. See section 801(b)(7)(A). The
Judges may decline to adopt the agreement as a basis for statutory
terms and rates for participants not party to the agreement if any
participant objects and the Judges conclude that the agreement does not
provide a reasonable basis for setting statutory terms or rates. Id.
Regardless of the comments of interested parties or participants,
the Judges are not compelled to adopt a settlement to the extent it
includes provisions that are inconsistent with the statutory license.
See Review of Copyright Royalty Judges Determination, 74 FR 4537, 4540
(Jan. 26, 2009) (error for Judges to adopt settlement without threshold
determination of legality); see also Review of Copyright Royalty Judges
Determination, 73 FR 9143, 9146 (Feb. 19, 2008) (error not to set
separate rates as required under sections 112 and 114 when parties'
unopposed settlement combined rates in contravention of those statutory
sections).\6\
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\6\ The Register found that a ``paucity of evidence'' in the
record to support a determination of separate rates for the separate
licenses ``does not dispatch the . . . Judges' statutory
obligations.'' Review of Copyright Royalty Judges Determination, 73
FR 9143, 9145 (Feb. 19, 2008). The Register noted that the Judges
have subpoena power to compel witnesses to appear and give
testimony. Id.
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As the Register of Copyrights (Register) observed in the 2009
review of the Judges' decision, nothing in the statute precludes
rejection of any portions of a settlement that would be contrary to
provisions of the applicable license or otherwise contrary to the
statute. 74 FR 4540. In the instance under review by the Register, the
settlement agreement purported to alter the date(s) for payment of
royalties granting licensees a longer period than section 115 provided.
Id. at 4542. The Register also noted that nothing in the statute
relating to adoption of settlements precludes the Judges from
considering comments of non-participants ``which argue that proposed
[settlement] provisions are contrary to statutory law.'' Id. at 4540.
The Judges received one comment from Jacob Eisenmann. Mr. Eisenmann
questions whether the joint proposal of ASCAP, BMI, GMR, and SESAC,
which proposes to modify the royalty rates set forth in Sec. 381.5
through a term providing rate options for licensed use of compositions
in the GMR repertory by certain entities broadcasting primarily in a
religious format, is in violation of the Establishment Clause of the
First Amendment to the Constitution. Eisenmann Comment at 1-2. Mr.
Eisenmann acknowledges that the history of the interpretation of the
Establishment Clause is extensive, and points to Lynch v. Donnelly, 465
U.S. 668 (1984), as an analytical framework for determining whether the
challenged rates violate the Establishment Clause. Id. Mr. Eisenmann
offers a perfunctory analysis in which he suggests that the provision
regarding rates for compositions in the GMR repertory by certain
entities broadcasting primarily in a religious format violates the
Establishment Clause. Id.
While the Judges may refuse to adopt a settlement that is
inconsistent with the statutory license or otherwise contrary to law,
the Judges do not find the challenged provisions regarding the GMR
repertory to be contrary to law. Lynch v. Donnelly notes that there is
no single test or criterion for the line-drawing process regarding
Establishment Clause concerns of the sort suggested by Mr. Eisenmann,
but directs inquiry as to whether a challenged action has a secular
purpose, and whether the action impermissibly has a principal or
primary effect to advance religion or creates excessive entanglement
between religion and government. Lynch v. Donnelly, 465 U.S. at 679.
The Judges are directed to 17 U.S.C. 801(b)(7)(A) to consider
whether a settlement agreement provides a reasonable basis for setting
statutory terms or rates, and to do so based on the record before them
if one exists. The arrival upon and submission of settlements,
axiomatically, may be driven in part to avoid costly and uncertain
litigation, a motivation that is secular in nature, and the settlement
at issue addressed a range of uses and users of GMR repertory.
Furthermore, the setting of rates and terms, as well as the provisions
of Chapter 8 of the Copyright Act, which facilitate and encourage
parties to enter into settlement negotiations, serve a secular purpose.
The Judges note that the challenged rates and terms, which were
proposed by GMR, apply solely to the GMR repertory. Furthermore, the
Judges observe that the challenged rates and terms address genres of
music used under the license and the primary genre format of a
licensee, without delineation of any particular religion. Under the
totality of the circumstances, the Judges do not find that the
challenged provisions impermissibly advance religion or create
excessive entanglement between religion and government.
In addition to finding that the challenged rates are not prohibited
under the Establishment Clause, the Judges disagree with Mr.
Eisenmann's assertion that the challenged rates promote any specific
religion either in purpose or effect. By the plain language, the
provisions address ``stations broadcasting primarily in a religious
format'' and include a parenthetical language noting that the
classification is ``without limitation'' particularly in relation to
several identified genres of music.
For the reasons set forth herein, and on the basis of the entirety
of the record before them, the Judges find that adoption of the
challenged rates, the product of a settlement applicable to the
repertory of the proponent copyright owner, adequately serves a secular
purpose and does not impermissibly advance religion or create excessive
entanglement between religion and government. In addition, the Judges
note the perfunctory nature of Mr. Eisenmann's comment and legal
analysis, from which the Judges cannot ascertain a basis for rejecting
the settlement on constitutional grounds.
The Judges adopt the rates and terms and technical revision as
proposed.
List of Subjects in 37 CFR Part 381
Copyright, Music, Radio, Rates, Television.
For the reasons set forth in the preamble, the Copyright Royalty
Judges amend 37 CFR part 381 as follows:
PART 381--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH
NONCOMMERCIAL EDUCATIONAL BROADCASTING
0
1. The authority citation for part 381 continues to read as follows:
Authority: 17 U.S.C. 118, 801(b)(1) and 803.
Sec. 381.1 [Amended]
0
2. In Sec. 381.1, remove the years ``2018'' and ``2022'' and add in
their places the years ``2023'' and ``2027'', respectively.
0
3. In Sec. 381.4, revise paragraphs (a) and (c) to read as follows:
Sec. 381.4 Performance of musical compositions by PBS, NPR and other
public broadcasting entities engaged in the activities set forth in 17
U.S.C. 118(c).
(a) Determination of royalty rate. The following rates and terms
shall apply to
[[Page 41829]]
the performance by the Public Broadcasting Service (PBS), National
Public Radio (NPR), and other public broadcasting entities engaged in
activities set forth in 17 U.S.C. 118(c) of copyrighted published
nondramatic musical compositions, except for public broadcasting
entities covered by Sec. Sec. 381.5 and 381.6, and except for
compositions which are the subject of voluntary license agreements: The
royalty shall be $1.
* * * * *
(c) Records of use. PBS and NPR shall, upon the request of a
copyright owner of a published musical work who believes a musical
composition of such owner has been performed under the terms of the
schedule established in paragraph (a) of this section, permit such
copyright owner a reasonable opportunity to examine their standard cue
sheets listing the nondramatic performances of musical compositions on
PBS and NPR programs. Any local PBS and NPR station that shall be
required by the provisions of any voluntary license agreement with
American Society of Authors, Composers and Publishers (ASCAP),
Broadcast Music, Inc. (BMI), Global Music Rights, LLC (GMR), or SESAC
Performing Rights, LLC (SESAC) covering the license period January 1,
2023, to December 31, 2027, to provide a music use report shall, upon
request of a copyright owner who believes a musical composition of such
owner has been performed under the terms of the schedule established in
paragraph (a), permit such copyright owner to examine the report.
0
4. In Sec. 381.5, revise paragraphs (c) through (e) to read as
follows:
Sec. 381.5 Performance of musical compositions by public broadcasting
entities licensed to colleges and universities.
* * * * *
(c) Royalty rate. A public broadcasting entity within the scope of
this section may perform published nondramatic musical compositions
subject to the following schedule of royalty rates:
(1) For all such compositions in the repertory of ASCAP, the
royalty rates shall be as follows:
(i) Music fees.
Table 1 to Paragraph (c)(1)(i)
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Number of full-time
students 2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... <1,000.................... $390 $400 $410 $421 $432
Level 2........................... 1,000-4,999............... 451 463 475 487 500
Level 3........................... 5,000-9,999............... 619 635 652 669 686
Level 4........................... 10,000-19,999............. 801 822 843 865 887
Level 5........................... 20,000+................... 1,009 1,035 1,062 1,090 1,118
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(ii) Fees for stations with an authorized effective radiated power
(ERP) of 100 Watts or less. Level 1 rates as set forth in paragraph
(c)(1)(i) of this section, shall also apply to College Radio Stations
with an authorized ERP, as that term is defined in 47 CFR 73.310(a), of
100 Watts or less, as specified on its current Federal Communications
Commission (FCC) license, regardless of the size of the student
population.
(2) For all such compositions in the repertory of BMI, the royalty
rates shall be as follows:
(i) Music fees.
Table 2 to Paragraph (c)(2)(i)
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Number of full-time
students 2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... <1,000.................... $390 $400 $410 $421 $432
Level 2........................... 1,000-4,999............... 451 463 475 487 500
Level 3........................... 5,000-9,999............... 619 635 652 669 686
Level 4........................... 10,000-19,999............. 801 822 843 865 887
Level 5........................... 20,000+................... 1,009 1,035 1,062 1,090 1,118
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(ii) Fees for stations with an authorized ERP of 100 Watts or less.
Level 1 rates, as set forth in paragraph (c)(2)(i) of this section,
shall also apply to College Radio Stations with an authorized ERP, as
that term is defined in 47 CFR 73.310(a), of 100 Watts or less, as
specified on its current FCC license, regardless of the size of the
student population.
(3) For all such compositions in the repertory of SESAC, the
royalty rates shall be as follows:
(i) 2023: The 2022 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(ii) 2024: The 2023 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(iii) 2025: The 2024 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(iv) 2026: The 2025 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(v) 2027: The 2026 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(vi) Such cost of living adjustment to be made in accordance with
the greater of: (A) The change, if any, in the Consumer Price Index
(all consumers, all items) published by the U.S. Department of Labor,
Bureau of Labor Statistics, during the twelve (12) month period from
the most recent Index, published before December 1 of the year
immediately prior to the applicable year; or
(B) One and one-half percent (1.5%).
(4) For all such compositions in the repertory of GMR, the royalty
rates shall be as follows:
(i) 2023: $174.00 per station, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
(ii) 2024: The 2023 rate, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
(iii) 2025: The 2024 rate, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
[[Page 41830]]
(iv) 2026: The 2025 rate, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
(v) 2027: The 2026 rate, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
(vi) For stations broadcasting primarily in a religious format
(including, without limitation, Contemporary Christian music, praise
and worship, Gospel, Southern Gospel, Spanish religious music,
inspirational, religious, etc.), at their option for 2023-2027, either
the rates set forth in paragraph (c)(4) of this section or the rates
set forth in Sec. 381.6(d)(4).
(5) For the performance of all other such compositions: $1.
(d) Payment of royalty rate. The public broadcasting entity shall
pay the required royalty rate to ASCAP, BMI, SESAC, and GMR not later
than January 31 of each year. Each annual payment to ASCAP, BMI, SESAC,
and GMR shall be accompanied by a signed declaration stating the number
of full-time students enrolled in the educational entity operating the
station and/or the ERP as specified in its current FCC license. An
exact copy of such declaration shall be furnished to each of ASCAP,
BMI, SESAC, and GMR.
(e) Records of use. A public broadcasting entity subject to this
section shall furnish to ASCAP, BMI, SESAC, and GMR upon request, a
music-use report during one week of each calendar year. ASCAP, BMI,
SESAC, and GMR shall not in any one calendar year request more than 10
stations to furnish such reports.
0
5. Amend Sec. 381.6 by revising paragraphs (d) through (f) to read as
follows:
Sec. 381.6 Performance of musical compositions by other public
broadcasting entities.
* * * * *
(d) Royalty rate. A public broadcasting entity within the scope of
this section may perform published nondramatic musical compositions
subject to the following schedule of royalty rates:
(1) For all such compositions in the repertory of ASCAP, the
royalty rates shall be as follows:
(i) Music fees for stations with 20% or more programming containing
Feature Music are as follows:
Table 1 to Paragraph (d)(1)(i)
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Calendar years
Population count -------------------------------------------------
2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $574 $585 $597 $609 $621
Level 2........................... 25,000-249,999............ 754 769 784 800 816
Level 3........................... 250,000-499,999........... 1,346 1,373 1,400 1,428 1,457
Level 4........................... 500,000-999,999........... 2,017 2,057 2,098 2,140 2,183
Level 5........................... 1,000,000-1,499,999....... 2,691 2,745 2,800 2,856 2,913
Level 6........................... 1,500,000-1,999,999....... 3,363 3,430 3,499 3,569 3,640
Level 7........................... 2,000,000-2,499,999....... 4,035 4,116 4,198 4,282 4,368
Level 8........................... 2,500,000-2,999,999....... 4,708 4,802 4,898 4,996 5,096
Level 9........................... 3,000,000 and above....... 6,726 6,861 6,998 7,138 7,280
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(ii) Talk Format Station fees for stations with <20% Feature Music
programming are as follows:
Table 2 to Paragraph (d)(1)(ii)
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Calendar years
Population count -------------------------------------------------
2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $265 $270 $276 $281 $287
Level 2........................... 25,000-249,999............ 574 585 597 609 621
Level 3........................... 250,000-499,999........... 574 585 597 609 621
Level 4........................... 500,000-999,999........... 574 585 597 609 621
Level 5........................... 1,000,000-1,499,999....... 942 961 980 1,000 1,020
Level 6........................... 1,500,000-1,999,999....... 1,177 1,201 1,225 1,249 1,274
Level 7........................... 2,000,000-2,499,999....... 1,412 1,440 1,469 1,498 1,528
Level 8........................... 2,500,000-2,999,999....... 1,647 1,680 1,714 1,748 1,783
Level 9........................... 3,000,000 and above....... 2,354 2,401 2,449 2,498 2,548
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(2) For all such compositions in the repertory of BMI, the royalty
rates shall be as follows:
(i) Music fees for stations with 20% or more programming containing
Feature Music are as follows:
Table 3 to Paragraph (d)(2)(i)
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Calendar years
Population count -------------------------------------------------
2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $574 $585 $597 $609 $621
Level 2........................... 25,000-249,999............ 754 769 784 800 816
[[Page 41831]]
Level 3........................... 250,000-499,999........... 1,346 1,373 1,400 1,428 1,457
Level 4........................... 500,000-999,999........... 2,017 2,057 2,098 2,140 2,183
Level 5........................... 1,000,000-1,499,999....... 2,691 2,745 2,800 2,856 2,913
Level 6........................... 1,500,000-1,999,999....... 3,363 3,430 3,499 3,569 3,640
Level 7........................... 2,000,000-2,499,999....... 4,035 4,116 4,198 4,282 4,368
Level 8........................... 2,500,000-2,999,999....... 4,708 4,802 4,898 4,996 5,096
Level 9........................... 3,000,000 and above....... 6,726 6,861 6,998 7,138 7,280
----------------------------------------------------------------------------------------------------------------
(ii) Talk Format Station fees for stations with <20% Feature Music
programming are as follows:
Table 4 to Paragraph (d)(2)(ii)
----------------------------------------------------------------------------------------------------------------
Calendar years
Population count -------------------------------------------------
2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $265 $270 $276 $281 $287
Level 2........................... 25,000-249,999............ 574 585 597 609 621
Level 3........................... 250,000-499,999........... 574 585 597 609 621
Level 4........................... 500,000-999,999........... 574 585 597 609 621
Level 5........................... 1,000,000-1,499,999....... 942 961 980 1,000 1,020
Level 6........................... 1,500,000-1,999,999....... 1,177 1,201 1,225 1,249 1,274
Level 7........................... 2,000,000-2,499,999....... 1,412 1,440 1,469 1,498 1,528
Level 8........................... 2,500,000-2,999,999....... 1,647 1,680 1,714 1,748 1,783
Level 9........................... 3,000,000 and above....... 2,354 2,401 2,449 2,498 2,548
----------------------------------------------------------------------------------------------------------------
(3) For all such compositions in the repertory of SESAC, the
royalty rates shall be as follows:
(i) Music fees for stations with 20% or more programming containing
Feature Music are as follows:
Table 5 to Paragraph (d)(3)(i)
----------------------------------------------------------------------------------------------------------------
Population count 2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $189 $192 $196 $200 $204
Level 2........................... 25,000-249,999............ 189 192 196 200 204
Level 3........................... 250,000-499,999........... 315 321 328 334 341
Level 4........................... 500,000-999,999........... 473 482 492 502 512
Level 5........................... 1,000,000-1,499,999....... 630 643 656 669 682
Level 6........................... 1,500,000-1,999,999....... 789 805 821 837 854
Level 7........................... 2,000,000-2,499,999....... 945 964 983 1,003 1,023
Level 8........................... 2,500,000-2,999,999....... 1,104 1,126 1,149 1,172 1,195
Level 9........................... 3,000,000 and above....... 1,577 1,608 1,640 1,673 1,707
----------------------------------------------------------------------------------------------------------------
(ii) Talk Format Station fees for stations with <20% Feature Music
programming are as follows:
Table 6 to Paragraph (d)(3)(ii)
----------------------------------------------------------------------------------------------------------------
Population count 2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $130 $133 $135 $138 $141
Level 2........................... 25,000-249,999............ 189 192 196 200 204
Level 3........................... 250,000-499,999........... 189 192 196 200 204
Level 4........................... 500,000-999,999........... 189 192 196 200 204
Level 5........................... 1,000,000-1,499,999....... 221 225 229 234 239
Level 6........................... 1,500,000-1,999,999....... 276 282 287 293 299
Level 7........................... 2,000,000-2,499,999....... 331 337 344 351 358
Level 8........................... 2,500,000-2,999,999....... 386 394 402 410 418
Level 9........................... 3,000,000 and above....... 552 563 574 586 597
----------------------------------------------------------------------------------------------------------------
[[Page 41832]]
(4) For all such compositions in the repertory of GMR, the royalty
rates shall be as follows:
(i) For a public broadcasting entity within the scope of this
section that is broadcasting one or more radio stations as of January
1, 2023, a single $50 fee for each such station for the entire five-
year license term from 2023 through 2027; and
(ii) For a public broadcasting entity within the scope of this
section that begins broadcasting a radio station after January 1, 2023,
but before December 31, 2027, a pro-rated amount equal to $10
multiplied by the number of full or partial years remaining in the
2023-2027 license term as of the date on which the radio station begins
broadcasting (e.g., a public broadcasting entity that begins
broadcasting a radio station in 2025 shall pay $30 for that station for
the remainder of the term).
(5) For the performance of all other such compositions, from 2023
through 2027: $1.
(e) Payment of royalty rate--(1) ASCAP, BMI, and SESAC. The public
broadcasting entity shall pay the required royalty rate to ASCAP, BMI,
and SESAC not later than January 31 of each year. Each annual payment
shall be accompanied by a signed declaration stating the Population
Count of the public broadcasting entity and the source for such
Population Count. An exact copy of such declaration shall be furnished
to each of ASCAP, BMI, and SESAC. Upon prior written notice thereof
from ASCAP, BMI, or SESAC, a public broadcasting entity shall make its
books and records relating to its Population Count available for
inspection. In the event that a public broadcasting entity wishes to be
deemed a Talk Format Station, then such entity shall provide a signed
declaration stating that Feature Music is performed in less than 20% of
its annual programming and that it complies with the caps set forth in
paragraph (b)(4) of this section. An exact copy of such declaration
shall be furnished to each of ASCAP, BMI, and SESAC. Upon prior written
notice thereof from ASCAP, BMI, or SESAC, a public broadcasting entity
shall make its program schedule or other documentation supporting its
eligibility as a Talk Format Station available for inspection.
(2) GMR. For fees due pursuant to paragraph (d)(4)(i) of this
section, the public broadcasting entity shall pay the required royalty
rate to GMR not later than January 31, 2023. For fees due pursuant to
paragraph (d)(4)(ii) of this section, the public broadcasting entity
shall pay the required royalty rate to GMR not later than 60 days after
the public broadcasting entity begins to broadcast the radio station
for which such fee is due. If a fee is paid pursuant to paragraph
(d)(4)(i) or (ii) of this section for a radio station and that station
changes ownership during the course of the license term but continues
to fall within the scope of this section, no additional fee shall be
due for that station during the 2023-2027 license term.
(f) Records of use. A public broadcasting entity subject to this
section shall furnish to ASCAP, BMI, SESAC, and GMR, upon request, a
music-use report during one week of each calendar year. ASCAP, BMI,
SESAC, and GMR each shall not in any one calendar year request more
than 10 stations to furnish such reports.
0
6. In Sec. 381.7, revise paragraphs (a) through (c) and (e) to read as
follows:
Sec. 381.7 Recording rights, rates and terms.
(a) Scope. This section establishes rates and terms for the
recording of nondramatic performances and displays of musical works,
other than compositions subject to voluntary license agreements, on and
for the radio and television programs of public broadcasting entities,
whether or not in synchronization or timed relationship with the visual
or aural content, and for the making, reproduction, and distribution of
copies and phonorecords of public broadcasting programs containing such
nondramatic performances and displays of musical works solely for the
purpose of transmission by public broadcasting entities, including
transmission via the internet by PBS and NPR. The schedule of rates and
terms established in this section include the making of the
reproductions described in 17 U.S.C. 118(c)(3).
(b) Royalty rate. (1)(i) For uses described in paragraph (a) of
this section of a musical work in a PBS-distributed program, the
royalty fees shall be calculated by multiplying the following per-
composition rates by the number of different compositions in that PBS-
distributed program:
------------------------------------------------------------------------
2023-2027
------------------------------------------------------------------------
(A) Feature.................................................. $121.07
(B) Concert feature (per minute)............................. 36.36
(C) Background............................................... 61.19
(D) Theme:
(1) Single program or first series program................. 61.19
(2) Other series program................................... 24.84
------------------------------------------------------------------------
(ii) For such uses other than in a PBS-distributed television
program, the royalty fee shall be calculated by multiplying the
following per-composition rates by the number of different compositions
in that program:
------------------------------------------------------------------------
2023-2027
------------------------------------------------------------------------
(A) Feature.................................................. $10.01
(B) Concert feature (per minute)............................. 2.63
(C) Background............................................... 4.35
(D) Theme:
(1) Single program or first series program................. 4.35
(2) Other series program................................... 1.73
------------------------------------------------------------------------
(iii) In the event the work is first recorded other than in a PBS-
distributed program, and such program is subsequently distributed by
PBS, an additional royalty payment shall be made equal to the
difference between the rate specified in this section for other than a
PBS-distributed program and the rate specified in this section for a
PBS-distributed program.
(2) For uses licensed under this section of a musical work in an
NPR program, the royalty fees shall be calculated by multiplying the
following per-composition rates by the number of different compositions
in any NPR program distributed by NPR. For purposes of the schedule
established in this section, ``National Public Radio'' programs include
all programs produced in whole or in part by NPR, or by any NPR station
or organization under contract with NPR.
------------------------------------------------------------------------
2023-2027
------------------------------------------------------------------------
(i) Feature.................................................. $13.11
(ii) Concert feature (per minute)............................ 19.24
(iii) Background............................................. 6.56
(iv) Theme:
(A) Single program or first series program................. 6.56
(B) Other series program................................... 2.62
------------------------------------------------------------------------
(3) For purposes of the schedule established in this section, a
``concert feature'' shall be deemed to be the nondramatic presentation
in a program of all or part of a symphony, concerto, or other serious
work originally written for concert performance, or the nondramatic
presentation in a program of portions of a serious work originally
written for opera performance.
(4) For such uses other than in an NPR-produced radio program:
[[Page 41833]]
------------------------------------------------------------------------
2023-2027
------------------------------------------------------------------------
(i) Feature.................................................. $.83
(ii) Feature (concert) (per half hour)....................... 1.72
(iii) Background............................................. .42
------------------------------------------------------------------------
(5) The schedule of fees covers use for a period of three years
following the first use. Succeeding use periods will require the
following additional payment: Additional one-year period--25 percent of
the initial three-year fee; second three-year period--50 percent of the
initial three-year fee; each three-year fee thereafter--25 percent of
the initial three-year fee; provided that a 100 percent additional
payment prior to the expiration of the first three-year period will
cover use during all subsequent use periods without limitation. Such
succeeding uses which are subsequent to December 31, 2022, shall be
subject to the schedule of royalty rates established in this section.
(6) For each use licensed under this section pursuant to paragraphs
(b)(1)(i) and (b)(2) of this section for transmission via the internet,
the royalty fees shall include a pro-rata share of $2,000 per calendar
year, which share shall be determined by calculating the aggregate
amount of royalty fees earned during that calendar year and dividing
the sum by the amount of royalty fees earned for each use.
(c) Payment of royalty rates. The required royalty due under
paragraphs (b)(1), (2), and (4) of this section shall be paid to each
known copyright owner not later than July 31 of each calendar year for
uses during the first six months of that calendar year and not later
than January 31 for uses during the last six months of the preceding
calendar year. The required royalty due under paragraph (b)(6) of this
section for each calendar year of the statutory license term shall be
paid to each known copyright owner not later than March 31 of each
following year for PBS- or NPR-distributed uses via the internet during
the preceding calendar year.
* * * * *
(e) Filing of use reports with the Copyright Royalty Judges:
deposit of cue sheets or summaries. PBS and its stations, NPR, or other
television public broadcasting entity shall deposit with the Copyright
Royalty Judges via online filing in eCRB one electronic copy of their
standard music cue sheets or summaries of same listing the recording
pursuant to the schedule established in this section of the musical
works of copyright owners. Such cue sheets or summaries shall be
deposited not later than July 31 of each calendar year for recordings
during the first six months of the calendar year and not later than
January 31 of each calendar year for recordings during the second six
months of the preceding calendar year. PBS and NPR shall maintain at
their offices copies of all standard music cue sheets from which such
music use reports are prepared. Such music cue sheets shall be
furnished to the Copyright Royalty Judges upon their request and also
shall be available during regular business hours at the offices of PBS
or NPR for examination by a copyright owner who believes a musical
composition of such owner has been recorded pursuant to the schedule.
Sec. 381.8 [Amended]
0
7. In Sec. 381.8:
0
a. In paragraph (b)(1) introductory text, add the words ``not otherwise
licensed by the copyright owner'' at the end of the paragraph;
0
b. In paragraphs (b)(1)(i) and (ii), in the table header, remove the
year ``2013-2017'' and add in its place the year ``2023-2027'';
0
c. In paragraph (d)(1), add the text ``, upon request,'' after ``shall
maintain and''; and
0
d. In paragraph (f)(1), remove the year ``2017'' and add in its place
the year ``2027''.
0
8. Revise Sec. 381.10 to read as follows:
Sec. 381.10 Cost of living adjustment.
(a) On or before December 1, 2023, the Copyright Royalty Judges
shall publish in the Federal Register a notice of the change in the
cost of living as determined by the Consumer Price Index (all
consumers, all items) during the period from the most recent Index
published prior to December 1, 2022, to the most recent Index published
prior to December 1, 2023. On or before each December 1 thereafter the
Copyright Royalty Judges shall publish a notice of the change in the
cost of living during the period from the most recent index published
prior to the previous notice to the most recent Index published prior
to December 1 of that year.
(b) On the same date of the notices published pursuant to paragraph
(a) of this section, the Copyright Royalty Judges shall publish in the
Federal Register a revised schedule of the rates for Sec. 381.5(c)(3)
and (4), the rates to be charged for compositions in the repertory of
SESAC and GMR, which shall adjust the royalty amounts established in a
dollar amount according to the greater of:
(1) The change in the cost of living determined as provided in
paragraph (a) of this section; or
(2) One-and-a-half percent (1.5%).
(3) Such royalty rates shall be fixed at the nearest dollar.
(c) The adjusted schedule for the rates for Sec. 381.5(c)(3) and
(4) shall become effective thirty (30) days after publication in the
Federal Register.
Dated: June 9, 2023.
David P. Shaw,
Chief Copyright Royalty Judge.
David R. Strickler,
Copyright Royalty Judge.
Steve Ruwe,
Copyright Royalty Judge.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2023-13668 Filed 6-27-23; 8:45 am]
BILLING CODE 1410-72-P
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</html>Indexed from Federal Register on June 28, 2023.
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